People v. Newsome

• Decision Date: 28 June 1966
• Docket Number: Nos. 15--17,No. 1,s. 15--17,1
• Citation: People v. Newsome, 143 N.W.2d 165, 3 Mich.App. 541 (Mich. App. 1966)
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marselle NEWSOME et al., Defendants-Appellants. Cal
• Court: Court of Appeal of Michigan

Page 165

143 N.W.2d 165

3 Mich.App. 541

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marselle NEWSOME et al., Defendants-Appellants.

Cal. Nos. 15--17.

Court of Appeals of Michigan, Division No. 1.

June 28, 1966.

Rehearing Denied in No. 16 Sept. 9, 1966; in No. 17 Sept. 23, 1966.

Haig Avedisian, Detroit, for John Malloy.

Ivan E. Barris, Detroit, for Malone, Brown, Rickenbach, Wallace, Ferrell, Herman Malone.

William Lawrence Colden, Detroit, for Caldwell, Robertson, Mann, Tryban, Norton, Brown, Casper and McCaslin.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.

Before McGREGOR, P.J., and HOLBROOK and QUINN, JJ.

HOLBROOK, Judge.

Thirty-nine defendants were charged with 2 counts of conspiracy ¹ for the crime of conspiracy to cheat and defraud the city of Detroit ², and for conspiracy to offer or receive gifts or gratuities to influence the actions of employees in relation to their employer's business. ³ The charges were dismissed as to some; others pleaded guilty, 28 were tried in the recorder's court in the city of Detroit before a jury. Twenty-one were convicted on both counts and seven defendants convicted on count 2, the first count having been dismissed by the court. Seventeen defendants have appealed their convictions and sentences including three ⁴ of the seven convicted on count 2 only.

Counsel for the defendant and appellants, made a motion for a directed verdict at the conclusion of the people's case claiming the people failed to prove one overall conspiracy; that the court under the circumstances should not have permitted the trial of all defendants together because of the great danger of the jury finding defendants guilty by transfer of guilt; and that at most the people had proven several separate conspiracies.

On this appeal appellants claim that the trial court erred in denying the motion for directed verdict and dismissal. Counsel for appellant, John Malloy raises two other questions on this appeal, viz: Under the charges in count 1, did the trial court err as a matter of law in denying defendant's motion to quash said information and motions for directed verdict and dismissal? Did the trial court commit prejudicial error in its charge to the jury as to count 2 of the information, by saying that it could not consider evidence that gratuities received as tips for extra service to be a defense?

There was no direct testimony showing that all of the conspirators and coconspirators met together at one time agreeing to conspire for the purposes contained in counts 1 and 2 of the information. The people based its case upon evidence of certain facts, with legitimate inferences to be drawn therefrom, together with circumstances surrounding numerous actions by the charged participants, who held a direct relationship to a particular business of the city of Detroit, showing a common purpose to effect the claimed conspiracies.

It was the theory of the people on the trial that the conspirators and coconspirators confederated and agreed together and with each other to cheat and defraud the city of Detroit by agreeing to short-weight the trucks of private haulers and permitting them to dump free, material not falling into the classification of highly combustible matter; and, during the period charged, the conspirators would overweigh the loads dumped by trucks owned and operated by the city to compensate for the shortage recorded for private haulers, thereby defrauding the city of Detroit of its proper income from private haulers for dumping and disposal of waste material at its incinerators.

It was also the theory of the people that the conspirators and coconspirators conspired, confederated, and agreed together and with each other to pay or accept bribes for the privilege of dumping refuse without paying the true costs due and owing the city, and that various sums of money were paid or collected amongst the various individuals named and not remitted to the city at any time.

Evidence was introduced by the people showing the following facts:

The city of Detroit operated four incinerators for the purpose of burning garbage, rubbish, and combustible material. For the most part the materials burned were those collected by the department of public works, a division of the city of Detroit. Private collectors of rubbish, garbage, and materials were also permitted to dump their loads at these incinerators and to pay a tonnage fee to the city for the right of disposal.

Appellants herein were all employees of the city of Detroit department of public works assigned to duties at the four incinerators owned and operated by the city. Appellants John Caspar, James Robertson, George Norton, Anthony MacKay, Glenn Caldwell, Robert J. Ferrell, James McCaslin, Carl Rickenbach were foremen on different daily working shifts. The other appellants worked under the supervision of the foremen named. Personnel from time to time were transferred from one incinerator to another and changed shifts.

The appellants had control of the operation of the incineration plants including the weigh scales and authority to permit dump trucks owned by private contractors to unload garbage or rubbish at the incinerators for a fixed fee. It was discretionary with the operators to permit certain highly combustible materials to be dumped free of charge. Such materials were desired by the city as a substitute for fuel to help burn the wet material. The private contractors had charge accounts with the city and were billed for payment. The payment due was determined for the particular account by weigh slips forwarded by the incinerator employees to the city accounting office. Payment also could be made at the incinerators by use of valued stamps which could be purchased at the incinerator.

It was shown by various witnesses that private contractors paid appellants and other defendants (employees of the city of Detroit) from $1 to $4 per load or on a flat weekly basis, for dumping their trucks at the incinerators. Instructions were given by the foremen to the other employees how to process the trucks of private haulers by short weighing or allowing them to go through free and to overweigh the city trucks. There was testimony by witnesses that money was paid by private truckers to each of the appellants. This money for the most part was by cash according to slips made out by the conspirators and given to the drivers of the private trucking firms. If a contractor failed to pay, the defendants at all four incinerators would refuse to allow his trucks to dump. The drivers would be told to call their boss and have him call a certain person at the incinerator. The defendants including the appellants had complete charge of the four incinerators for the city and if an incinerator was overloaded or behind schedule they would put out a sign 'take no load'; however, the private contractors paying the fee were allowed to dump even on these occasions. As usual they were allowed to dump without charge or with a reduced weigh slip.

The arrangements were the same at all four incinerators and were known by all the conspirator contractors. Maynard Brown, one of the foremen, asked Louis Winkler, one of the private contractors, if he knew what the rates were to come in and Winkler replied, 'Yes'. It was shown that Winkler had similar arrangements with appellants, Glenn Caldwell, James Brown, Anthony MacKay, Robert J. Ferrell, Turner Malone, and James McCaslin. The treatment given to the particular contractors was the same by the conspirators regardless of the shift working or the location of the incinerator.

The rates were uniform as to the contractors. If there was a change in rates the new rates were enforced at each of the four incinerators. Two to three hundred free loads were permitted in payment for sporting goods. The method of payment was usually by check made out to cash and cashed by a driver who turned the money over to a conspirator; or by an envelope delivered by the contractor to the driver and then given by the driver to the scaleman or foremen. On occasion checks were made out to cash and indorsed by conspirator scalemen and cashed at the scales all without receipts. All such payments were never accounted for or paid to the city of Detroit.

Louis Winkler, one of the contractors, testified he paid incinerator operators in cash $7,551 in 1958; $8,668 in 1959; $9,204.28 in 1960; $9,321 in 1961; for a total of $34,744.28; whereas, during the same period of time he paid direct to the city of Detroit upon billings by check, $30,420. Martin Findling, one of the conspirators, testified as to coming to an understanding with various trucking companies accepting money instead of tickets and letting companies dump their trucks without further charge. The money was taken for the benefit of those at the incinerator and the money was divided. He short weighed loads upon orders of a fellow conspirator, George Norton, and was told by five other conspirators to increase the weight of city trucks. He further testified that he saw two other conspirators falsify weights of city trucks. He went to business offices of contractors to accept moneys for himself and he distributed such moneys to others and received moneys from others who collected for him.

Conspirator Mann on one occasion told driver Sager he couldn't dump and advised him to call his boss. Sager did so and saw his boss confer with Mann and after the conversation he was permitted to dump. Conspirator James Robertson told Sheats to send driver Lazorowicz 'on his way'. Lazorowicz was told to 'have Freddie call me'. Drivers when permitted to dump would receive tickets recording reduced weights or would not receive a charge ticket at all. Similar incidents involved all of appellants. The private contractors knew of the arrangements and understanding or were informed of the same as they...